POLICE SPY TOOLS EVOLVE FASTER THAN LAWMAKERS CAN KEEP UP

Baltimore's aerial surveillance continues unchecked

By Monte Reel

Bloomberg Businessweek
December 8, 2016

In late October, a group of Maryland legislators met with police officials, attorneys, privacy advocates, and policy analysts to discuss creating a legal framework to govern aerial surveillance programs such as the one the Baltimore Police Department had been using to track vehicles and individuals through the city since January.

“What, if anything, are other states doing to address this issue?” Joseph Vallerio, the committee’s chairman, asked the panel.

“Nothing,” replied David Rocah, an attorney with the ACLU. “Because no one has ever done this before.”

The Baltimore surveillance program broke new ground by bringing wide-area persistent surveillance—a technology that the military has been developing for a decade—to municipal law enforcement. The police department kept the program secret from the public, as well as from the city’s mayor and other local officials, until it was detailed in August by Bloomberg Businessweek. Privacy advocates, defense attorneys, and some local legislators called for the program to be suspended immediately, until the technology could be evaluated in public hearings.

But in the three months since the public discussion began, the police have continued to use the surveillance plane to monitor large events, such as the Baltimore Marathon, and essential questions remain unanswered. The police continue to classify the program as an ongoing trial, but the private company that operates it for the police—Persistent Surveillance Systems—doesn’t have a permanent contract and no specific regulations govern its operations.

Several local lawmakers have stressed the need for more oversight of the program at a time when the technology is spreading to private industry. But in the case of Baltimore, the administrative structure of the police department has complicated those efforts. Unlike most other major cities, the city of Baltimore doesn’t regulate its own police; when the department was founded in the mid-19th century, it was established as a state agency, which means its oversight falls to the Maryland General Assembly. The state legislature is in session for only three months each year, and it had adjourned before the surveillance program was revealed.

David Moon, a Maryland delegate from the Washington, D.C,. suburb of Takoma Park, says he and other legislators met during the summer to try to craft legislation that would require more public transparency when police departments use StingRay devices, which are cell phone tower simulators used to track individuals via their mobile phone signals. Now, he says, the legislators want to write the law so that it also applies to aerial surveillance programs. But any such measures would have to wait until the General Assembly’s 2017 session begins in January.

“One of the things we’ve realized in all of this is that the law—either in terms of the courts or the legislature—doesn’t seem to keep up with the technology,” says Moon. “We’re caught in a situation where law enforcement can put new technologies into use and they just ask for permission later—and only if the media or the courts start to question what they're doing.”

The Baltimore project depends on a small airplane that circles the city for up to 10 hours a day. An attached bank of cameras instantly creates a 32-square-mile photographic map, which is updated once per second. The police can fast-forward or rewind the images, tracking vehicles or individuals as they move inside the city, for hours at a time. The footage is archived and can be reviewed days or months later. Or years later—in theory, the only limit is storage capacity.

Privacy advocates balked at the notion that the police could, if they desired, compile what amounts to a permanent visual record of the city. Ross McNutt, the founder and chief executive officer of Persistent Surveillance Systems, tried to allay those concerns, saying his company’s policy was to erase the imagery after 45 days. Maryland public defenders weren’t calmed. “For our innocent clients, we missed opportunities to subpoena exonerating footage collected by the spy plane,” wrote Kelly Swanston, a public defender, in an op-ed in the Baltimore Sun. “For our clients who were mistreated by officers, or whose versions of the truth differed from an officer's report, we failed to corroborate the truth because we did not know that a plane had captured footage of the city.” The Baltimore Office of Public Defenders sent a letter to Police Commissioner Kevin Davis three days after the Bloomberg Businessweek article was published online, asking for clarification about the program’s policy for retaining data. Davis responded on Sept. 20 that Persistent Surveillance Systems had retained all the images since the program’s launch in January, “regardless of whether the images were provided to BPD for use in investigations.”

Andrew Vetter, chief of staff for the city’s police commissioner, told state lawmakers that because the trial surveillance program hadn’t yet been permanently adopted, the city hadn’t drafted an official data retention policy and wasn’t beholden to informal guidelines. Police spokesman T.J. Smith said the department would decide whether to adopt the program permanently only after a thorough analysis of the project was completed by the Police Foundation, a national research organization based in Washington, D.C.

The ACLU’s Jay Stanley, a senior policy analyst, points out that the field of wide-area surveillance is a growing one, and other cities could soon confront the same questions Baltimore is now facing. McNutt has said his company has no interest in increasing his company’s camera resolution beyond one pixel per person, which prevents individuals from being identified based on the images alone. But one company’s informal promises shouldn’t be counted on as an industry standard.

“It is inevitable that if this is allowed to happen, the cameras will be put on drones,” Rocah, the ACLU attorney, told the Maryland legislators. “And it is absolutely inevitable that the camera resolution is only going to be going up, the cost of the cameras will be going down, and what the cameras will see will only become more detailed.”

Many of the emerging companies in the field are connected to former military engineers—like McNutt—who helped develop the first real-time, wide-area surveillance systems used in the Iraq and Afghanistan wars. The development of those systems in the mid-2000s was often contentious, as the engineers competed for recognition and military contracts. Now, several of them are running competing companies offering similar technologies for civilian clients.

Steve Suddarth, a former Air Force colonel, helped conceive of Angel Fire, the same pioneering program that McNutt’s system is based on. Suddarth brought McNutt into the project, but the two men eventually clashed, disagreeing over the extent of the other’s contributions to the technology. The technological concepts underpinning the early Angel Fire versions weren’t copyright protected, and the software was open-sourced among military engineers, Suddarth says.

Like McNutt, Suddarth has since left the military and has started his own wide-area imaging company—Transparent Sky, based in New Mexico. Like McNutt, his systems thus far have been mounted on small airplanes, but he says the direction of the industry is clear—and it’s one that generally matches the predictions of Rocah and others at the ACLU.

“It’s all about drones,” says Suddarth. He says his company is continuing to reduce the cost of his systems, which are designed to be sold for about $100,000 and do not require additional personnel. Improving camera technology, he says, is allowing the systems to be put on progressively smaller unmanned systems. “We just might be able to make something that’s under a half-pound that would do this mission just fine,” Suddarth says. “And right now, the rules for drones under a half-pound are that there are no rules.”

In addition to law enforcement applications, the companies have begun marketing their services to insurance companies, which could use the imagery to investigate liability and payment claims. They also are targeting officials who must monitor large, temporary events, such as festivals and sporting events. Transparent Sky, for example, demonstrated its technologies in Brazil during the World Cup in 2014 but didn’t sell the system there. Another American company, however, Logos Technologies, did sell a wide-area surveillance system to Brazil’s Ministry of Justice for the 2016 Olympic Games. That company’s system was developed with the help of former U.S. military engineers who developed Constant Hawk, another military technology that competed with Angel Fire for adoption in Iraq and Afghanistan.

Unlike Persistent Surveillance Systems, Logos doesn’t provide personnel to analyze the images it produces—its customers do that on their own. But Rombough says an increasing amount of analysis can be automated. The Logos software can automatically detect out-of-the-ordinary motion in specifically targeted areas; after a “watch box” is drawn around a specific intersection, for example, the system can automatically alert analysts whenever it senses atypical motion—an increase in foot traffic, for example. Social media posts tagged to specific locations can be integrated into the analysis. “Everything down to things like Twitter can be pulled down to that, because all of our imagery has got a location and time stamp to it,” Rombough says.

All the companies insist that the rights of citizens can easily be protected. But for privacy advocates such as Rocah, those sorts of capabilities represent “literally the thing that we’ve been warning about for decades.” The Baltimore program, he says, was a wakeup call.

“What this program has done,” Rocah says, “is that it has brought home the reality that the nightmare is here, and if we don’t act, it will be too late.”